Ordinance 92-2808ORDINANCE NO.
92-2808
AN ORDINANCE OF THE CITY OF MIAMI BEACH, FLORIDA, AMENDING
MIAMI BEACH CITY CODE CHAPTER 39, ENTITLED "STREETS,
SIDEWALKS AND PUBLIC FACILITIES", BY ADDITION OF ARTICLE VI,
ENTITLED "SIDEWALK CAFES"; REQUIRING PERMITS FOR THE
OPERATION OF SIDEWALK CAFES AND ESTABLISHING PROCEDURES AND
REQUIREMENTS FOR GRANTING SAID PERMITS; PROVIDING FOR
DENIAL, SUSPENSION AND/OR REVOCATION OF PERMITS AND
PROVIDING FOR APPEALS FROM SAID DECISIONS; PROVIDING FOR
ENFORCEMENT BY CODE INSPECTORS, CIVIL FINES FOR VIOLATIONS
OF THIS SECTION AND PROCEDURES FOR APPEALING FINES;
PROVIDING FOR RECOVERY OF UNPAID FINES AND THAT SAID FINES
SHALL CONSTITUTE A LIEN WHICH MAY BE FORECLOSED; PROVIDING
FOR REPEALER, SEVERABILITY AND EFFECTIVE DATE.
BE IT ORDAINED BY THE CITY COMMISSION OF THE CITY OF MIAMI BEACH,
FLORIDA:
SECTION 1. That Chapter 39 of the Miami Beach City Code, entitled
"Streets, Sidewalks and Public Facilities" is hereby amended by adding
an Article VI, entitled "Sidewalk Cafes", to read as follows:
ARTICLE VI. SIDEWALK CAFES
Sec. 39-28. Declaration of Necessity and Intent.
It is hereby found and declared:
(1) That there exists the need for outdoor eating
establishments (sidewalk cafes) in certain areas of Miami Beach
to provide a unique environment for relaxation and food
consumption.
/2) That the existence of sidewalk cafes encourages
additional pedestrian traffic to these areas.
(3) That the presence of sidewalk cafes may thus impede the
free and safe flow of pedestrian traffic.
(4) That there is a need for regulations and standards for
the existence and operation of sidewalk cafes to facilitate and
ensure a safe environment in these areas.
LJ That the establishment of permit conditions and safety
standards for sidewalk cafes is necessary to protect and promote
the general health, safety, and welfare of the residents of the
City of Miami Beach.
(6) That there is a need to encourage the establishment of
sidewalk cafes on Lincoln Road, and therefore the permit fee
imposed by the City for such uses should be waived for a three
year period commencing on the effective date of this Ordinance.
However, a permit must still be obtained and the base application
endinq, A -frame structure
fixed in o
fee paid.
Sec. 39-29 Definitions.
When used in this Article, the following words shallhave the
following meanings:
"Director" means the City Manager of the City of Miami Beach
or his/her designee.
"Permittee" means the recipient of a Sidewalk Cafe Permit
under the terms and provisions of this Article.
"Right -Of -Way" means land in which the state, the Florida
Department of Transportation, Dade County or the City of Miami
Beach owns the fee or has an easement devoted to or required for
use as a transportation facility or Street.
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Ordi eNo.
"Sidewalk" means that portion of the Right -Of -Way which is
located between the curb line or the lateral line of a Street and
the adjacent property line and which is intended for use by
pedestrians; provided that on Lincoln Road Mall "Sidewalk" shall
mean Right -Of -Way as defined above but shall only refer to that
area between the property line and the center line of the Right -
Of -Way, exclusive of landscaped areas and a ten foot wide
easement for vehicular access.
"Sidewalk Cafe" means a use located on a public Sidewalk
which is associated with a restaurant or food establishment where
food or beverages are delivered for consumption on the premises
but not having cooking or refrigeration equipment. It is
characterized by tables and chairs and may be shaded by awnings,
canopies or umbrellas if permits for same have been issued.
"Sign", or "Signs" shall have the same meaning as provided
for in Section 3-2A of the City's Zoning Ordinance No. 89-2665.
"Street" means that portion of a Right -Of -Way improved,
designed or ordinarily used for vehicular traffic or parking.
"Usable Sidewalk Area" means the frontage of the property
times the width of the Sidewalk less five (5) feet.
2
Provided, however, that for
November 1st and: shall be prorated for an eleven -,month per .oc ,
Sec. 39-30. Permit Required.
It shall be unlawful for any person to operate a Sidewalk
Cafe on any Sidewalk or public Right -Of -Way within the City
without obtaining a permit as required by this article. Sidewalk
cafes shall only be located where permitted by the City's Zoning
Ordinance No. 89-2665, and amendments thereto. No person shall
establish a Sidewalk Cafe on any public Roadway or Sidewalk
unless such person has obtained a valid permit to operate that
Sidewalk Cafe pursuant to this Article.
After thirty (30) days from the effective date of this
ordinance any person or entity operating a Sidewalk Cafe without
a permit or any property owner allowing the operation of a
Sidewalk Cafe without a permit upon his/her/its property shall be
subject to enforcement and penalties as provided in Miami Beach
City Code Chapter 9B.
Sec. 39-31. Permit Fee.
(1) The annual permit fee for establishing or maintaining
a Sidewalk Cafe shall be Ten Dollars ($10.00) per square foot of
Usable Sidewalk Area, including the area between the tables and
chairs,as determined by the Director.
(2) The permit fee shall be paid on or before October 1
and shall cover the time period from October 1 through September
30 of the following calendar year, except that where the permit
fee exceeds two thousand dollars ($2,000) the fee may be paid in
two (2) semiannual increments, the first to be due on October 1
and the second to be due on April 1.
the 1992-93 year the fee shall be due and payable on or prior to
No license shall be issued for any fractional portion of the
year; provided, however, that any person or entity operating a
Sidewalk Cafe for a period beginning after May 1, may obtain a
permit for the remaining portion of the fiscal year upon payment
of one-half of the permit fee required by this Article. Except
as provided in Section 39-36 no refund of the fees shall be
granted.
3
Q J The permit fees collected pursuant to this section from
Sidewalk Cafes located on Ocean Drive shall be placed and
maintained in a separate fund and shall be utilized only for
improvements and/or maintenance on Ocean Drive. The permit fees
collected pursuant to this Section from Sidewalk Cafes located on
Lincoln Road Mall shall be placed and maintained in a separate
fund and shall be utilized only for Lincoln Road Mall management
and improvements.
L 1 Notwithstanding any other paragraph or provision of
this Article, no permit fee as required by this Section shall be
required for operation of Sidewalk Cafes on Lincoln Road prior to
three (3) years after the effective date of this Ordinance;
however, a permit must still be obtained and the base application
fee required by Section 39-31 shall be paid.
Sec. 39-32. Permit Application.
/1) Application for a permit to operate a Sidewalk Cafe
shall be made at the office of the Director. Such application
shall include, but not be limited to, the following information:
(a) Name, address and telephone number of the
applicant;
Name and address of restaurant;
L j A copy of a valid City of Miami Beach
occupational license to operate a restaurant
adjacent to the Sidewalk area which is the
subject of the application. The number of chairs
to be utilized for the Sidewalk Cafe must be
included in the number of chairs authorized by
the license;
(d) A copy of a valid Certificate of Use for the
building frontage adjacent to the Sidewalk area
which is the subject of the application;
L C_ A copy of current insurance in the amounts and
categories required by Section 39-31 of this
Article;
4
ifl A drawing (drawn to scale) showing the layout and
dimensions of the existing Sidewalk area and
adjacent private property, proposed location,
size and number of tables, chairs, steps,
umbrellas, location of doorways, location of
trees, parking meters, bus shelters, Sidewalk
benches, trash receptacles, and any other
Sidewalk obstruction either existing or proposed
within the pedestrian area; and
(g) Photographs, drawings or manufacturers'brochures
fully describing the appearance of all proposed
tables, chairs, umbrellas or other objects
related to the Sidewalk Cafe.
(h) An affidavit from the owner(s) of the
property(ies) immediately adjacent to the
Sidewalk where the proposed Sidewalk Cafe will be
located consenting to the operation of the
Sidewalk Cafe at that location.
(2) Annual application shall be accompanied by a non-
refundable base application fee of $150.00.
(3) Applications shall be reviewed for compliance with City
ordinances and must be approved by the following departments or
divisions; Public Works, Planning & Zoning, Historic
Preservation and Urban Design, Fire, Risk Management.
Sec. 39-34. Standards and Criteria for Application Review.
The following standards and criteria shall be used in
reviewing the drawing required in Section 39-28(1)(f)(q):
ill Sidewalk Cafes are restricted to the Sidewalk frontage
of the licensed restaurant to which the permit is issued or
within the Sidewalk frontage of the building where the validly
licensed restaurant is located, provided that written approval is
supplied by the building owner.
(2) In the event the subject area of the permit extends to
a public Right -Of -Way in front of an adjacent owner's property,
the permittee must obtain written permission from the adjacent
property owner for use of this area. The revocation or
5
suspension of this permission shall not operate to grant the
permittee a refund of the annual permit fee or any other fees
paid to the City of Miami Beach for operation of a Sidewalk Cafe.
121 Permits will not be issued where the tables and chairs
would be placed within five (5) feet of bus stops, taxi stands,
fire hydrants, or alleys.
/4, No tables or chairs will be permitted within five (5)
feet of a pedestrian crosswalk or handicap ramp.
ja Sidewalk Cafes shall be located in such a manner that
50% of the Sidewalk width, with a minimum width of five (5) feet,
is maintained at all times as an unobstructed pedestrian path;
provided that the Director may permit Sidewalk Cafes to occupy
additional space where established pedestrian and tram paths
shall not be obstructed and where public safety shall not be
adversely affected. In areas of congested pedestrian activity,
the Director is authorized to require a wider pedestrian path, as
circumstances dictate.
/6) No object shall be permitted around the perimeter of an
area occupied by tables and chairs which would have the effect of
forming a physical or visual barrier discouraging the free use of
the tables and chairs by the general public or which would have
the effect of obstructing the pedestrian path.
(7) Tables, chairs, umbrellas, canopies, awnings and any
other objects provided with the sidewalk cafe shall be of
quality, design, materials, size, elevation and workmanship both
to ensure the safety and convenience of users, and to enhance the
visual quality of the urban environment. Design, materials, and
colors shall be approved by the Historic Preservation and Urban
Design Director prior to the issuance of the Sidewalk Cafe
Permit.
(8) Awnings, umbrellas and other decorative material shall
be fire -retardant, pressure -treated or manufactured of fire
resistive material. Signs, with the exception of the
establishment name, are prohibited on awnings, umbrellas, chairs,
tables and any other fixture which is located on the public
Right -Of -Way. Lettering may not exceed 6 inches in height.
6
(9) Prior to issuance of a sidewalk cafe permit, the
Finance Director shall certify that there are no outstanding
fines, monies, fees, taxes or other charges owed to the City by
the current or past owners or operators of the property
requesting a sidewalk cafe permit. A sidewalk cafe permit will
not be issued until all outstanding debts to the City are paid in
full.
(10) Only one (1) menuboard shall be permitted with a
maximum size that does not exceed four (4) square feet. The
menuboard shall be placed in a location approved by the Director
of Historic Preservation and Urban Design and the menuboard
location shall be shown on the permit.
x>}7ubnarci'shall not
Sec. 39-35. Liability and Insurance.
(1) The permittee agrees to indemnify, defend, save and
hold harmless the City, its officers and employees from any and
all claims, liability, lawsuits, damages and causes of action
which may arise out of this permit, or the permittee's activity
on the demised premises.
(2) The permittee agrees to meet and maintain for the
entire permit period, at its own expense, the following
requirements:
/a1 Commercial general liability insurance in the
amount of $500,000 per occurrence for bodily
injury and property damage. The City must be
named as an additional insured on this policy and
an endorsement must be issued as part of the
policy reflecting this requirement.
_Chi Workers' compensation and employersliability as
required by the State of Florida.
All policies must be issued by companies
authorized to do business in the State of Florida
and rated B+:VI or better per Best's Key Rating
Guide, latest edition.
7
ill The City must receive thirty (30) days written
notice prior to any cancellation, non -renewal or
material change in the coverage provided.
L_ The permittee must provide and have approved by
the City's Risk Manager an original certificate
of insurance as evidence that the above
requirements have been met prior to commencing
operations. Failure to comply with these
requirements shall cause a suspension or
revocation of this permit.
(3) The permit period shall run and insurance requirements
as described in subsection 2 above shall be effective from
October 1 until September 30 of the following calendar year.
Sec. 39-36. Conditions of Permit.
In addition to the information required in Section 39-25 and
the standards and criteria described in Section 39-30, the permit
shall contain the following conditions:
ill Each permit shall be effective for one (1) year from
October 1 until September 30, subject to annual renewal with the
approval of the Director.
LL The permit issued shall be personal to the permittee
only and shall be transferable only with the approval of the
Director. Such approval shall not be unreasonably withheld.
Q_ The permit may be temporarily suspended by the Director
when necessary to clear Sidewalk areas for a "community or
special event" authorized by a permit issued by the Police
Department.
iAI The Director may require the temporary removal of
Sidewalk Cafes when Street, Sidewalk, or utility repairs
necessitate such action. If such temporary removal exceeds
fifteen(15) days, the Director shall prorate the remaining permit
fee for each additional day the Sidewalk Cafe is removed and
apply a credit toward the following year's permit fee or if
requested to do so by the permittee, refund the remaining fee to
the permittee.
8
(5) The City Manager or his designee, the Director or the
Police Department may cause the immediate removal or relocation
of all or parts of the Sidewalk Cafe in emergency situations.
(6) The City and its officers and employees shall not be
responsible for Sidewalk Cafe components relocated during
emergencies.
L2J The permit shall be specifically limited to the area
shown on the "exhibit" attached to and made a part of the permit.
The Director shall have the right to remove without notice, any
tables, chairs or other objects not in the permit area.
(8) The permittee shall use positive action to assure that
its use of the Sidewalk in no way interferes with Sidewalk users
or limits their free unobstructed passage. The Director may
require relocation of tables, chairs and other objects at any
time for safety or pedestrian flow considerations.
191 The Sidewalk Cafe shall be opened for use by the
general public and such use shall not be restricted to patrons of
the permittee.
(10) Permittees holding an occupational license or
Certificate of Use limited to take-out food shall not be
permitted to provide table service on the Sidewalk.
(11) Tables, chairs, umbrellas, and any other objects
provided with a Sidewalk Cafe shall be maintained with a clean
and attractive appearance and shall be in good repair at all
times.
(12) The Sidewalk area covered by the permit and Sidewalk
and Roadway immediately adjacent to it shall be maintained in a
neat and orderly appearance at all times and the area shall be
cleared of all debris as needed during the day, and again at the
close of each business day and as determined by the Director.
(13) No advertising signs or business identification signs
shall be permitted in the public Right-Of-Way.
(14) No tables, chairs or any other parts of Sidewalk cafes
shall be attached, chained, or in any manner affixed to any tree,
post, sign, or other fixtures, curb or Sidewalk within or near
the permitted area. No additional outdoor seating authorized
herein shall be used for calculating seating requirements
9
pertaining to location of, applications for, or issuance of a
liquor license for any establishment; nor shall it be used as the
basis for computing required seating for restaurants and dining
rooms, or as grounds for claiming exemption from such
requirements under the provisions of any city ordinance or state
law.
(15) The permit covers only the public Sidewalk. Tables and
chairs on private property will be governed by other applicable
regulations.
(16) The permittee shall notify the Director, in writing,
when operation of the sidewalk cafe begins. Said notice shall be
delivered to the Director within twenty-four (24) hours of such
commencement.
(17) No food preparation fire, or fire apparatus shall be
allowed on the public Sidewalk, whether or not such area is
covered by this permit.
(18) Upon the issuance of a "Hurricane Warning" or
"Hurricane Watch" by the Dade County Office of Emergency
Management the permittee shall forthwith remove and place indoors
all tables, chairs, awnings and other equipment located on the
sidewalk.
Sec. 39-37. Denial, Revocation or Suspension of Permit;
Removal and Storage Fees; Emergencies.
L11 The approval of a Sidewalk Cafe permit is conditional
at all times. A Sidewalk Cafe permit be denied, revoked or
suspended if it is found that:
Lj Any necessary business or health permit
has been suspended, revoked, or canceled.
L1 The permittee does not have insurancewhich is
correct and effective in the minimum amount
described in Section 39-31.
jgZ The permittee exceeds the approved square footage
by placing any additional tables, chairs, etc.,
beyond the approved area.
LL Changing conditions of pedestrian orvehicular
traffic cause congestion necessitating removal of
the Sidewalk Cafe. Such decision shall be based
10
upon findings of the Director that the minimum
five (5) foot pedestrian path is insufficient
under existing circumstances and represents a
danger to the health, safety, or general welfare
of pedestrians or vehicular traffic.
LL The permittee has failed to correct violations of
this article or conditions of this permit within
twenty-four (24) hours of receipt of the
Director's notice of same delivered in writing to
the permittee.
LL In the event the permittee fails to remove any
tables, chairs, and other objects related to the
Sidewalk Cafe within twenty four (24) hours of
receipt of the Director's final notice of denial,
revocation or suspension, the Director may remove
said objects. The permittee shall be responsible
for the expenses incurred by the City for the
removal and storage of said objects.
(2) Upon denial of the permit, the Director shall give
written notice of such action to the permittee.
(3) If the Director believes that a permittee has engaged
or is engaged in conduct warranting the suspension or revocation
of the permit, he shall serve the licensee by certified mail or
hand delivery, at his business address as disclosed in his
application for the permit, a written administrative complaint
which affords reasonable notice of facts or conduct which warrant
the intended action. The complaint shall state what is required
to be done to eliminate the violation, if any. The permittee
shall be given adequate opportunity to request a prior
administrative hearing before a Special Master appointed by the
City Commission, unless the Director finds that an emergency
condition exists involving serious danger to public health,
safety or welfare, in which case advance notice and hearing shall
not be required. In the case of an emergency suspension or
revocation, the licensee shall immediately be advised of the
Director's action and afforded a prompt post -suspension or
revocation hearing in accordance with the procedures set forth in
11
Section 20 29 20-44 of the Miami Beach City Code.
Sec. 39-38. Appeals from the Decision of the Director of
Special Master.
Appeals from decisions of the Director made pursuant to this
Article shall be to the Property Maintenance Standards Appeals
Board in accordance with the procedures set forth in Section 17B-
17 of the Miami Beach City Code.
Appeals from the decisions of the Special Master or Property
Maintenance Standards Appeals Board shall be to a court of
competent jurisdiction by petition for writ of certiorari.
Sec. 39-39. Enforcement of Article by Code Inspectors; Notice
of Violation
If a code inspector as defined in chapter 9B of the Miami
Beach City Code finds a violation of this Article, said inspector
shall issue a notice of violation to the violator as provided in
chapter 9B. The notice shall inform the violator of the nature
of the violation, amount of fine for which the violator may be
liable, instructions and due date for paying the fine, notice
that the violation may be appealed by requesting an
administrative hearing within twenty (20) days after service of
the notice of violation, and that failure to do so shall
constitute an admission of the violation and waiver of the right
to a hearing.
Sec. 39-40 Civil Fine for Violators.
The following civil fines shall be imposed for violators of
this Article:
First citation = $100 fine
Second citation
(within a 1 year
period)
Third citation
(within a 1 year
period)
$250 fine
$500 fine
Sec. 39-41. Rights of Violators; payment of fine; right to
appeal; failure to pay civil fine or to appeal.
(1Z A violator who has been served with a notice of
violation shall elect either to:
12
(a) Pay the civil fine in the manner indicated on the
notice; or
1121 Request an administrative hearing before a
Special Master appointed by the City Commission
to appeal the decision of the code inspector
which resulted in the issuance of the notice of
violation.
(2) The procedures for appeal shall be as set forth
in Section 20-44 of the Miami Beach City Code.
(3) If the named violator after notice fails to pay the
civil fine or fails to timely request an administrative hearing
before a Special Master, the Special Master shall be informed of
such failure by report from the code inspector. Failure of the
named violator to appeal the decision of the code inspector
within the prescribed time period shall constitute a waiver of
the violator's right to administrative hearing. A waiver of the
right to administrative hearing shall be treated as an admission
of the violation, and penalties may be assessed accordingly.
(4) Any party aggrieved by the decision of a Special Master
may appeal that decision to a court of competent jurisdiction as
provided in Section 162.11, Florida Statutes.
Sec. 39-42. Recovery of unpaid fines; unpaid fines to
constitute a lien; foreclosure
(1) The City of Miami Beach may institute proceedings in a
court of competent -jurisdiction to compel payment of civil fines.
j A certified copy of an order imposing a civil fine may
be recorded in the public records and thereafter shall constitute
a lien upon any other real or personal property owned by the
violator and it may be enforced in the same manner as a court
iudgment by the sheriffs of this state, including levy against
the personal property, but shall not be deemed to be a court
-judgment except for enforcement purposes. After two (2) months
from the filing of any such lien which remains unpaid, the City
of Miami Beach may foreclose or otherwise execute on the lien.
SECTION 2. SEVERABILITY.
If any section, subsection, clause or provision of this
Ordinance is held to be invalid, the remainder shall not be /,
13 P149"3
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SECTION 3. REPEALER.
All Ordinances or parts of Ordinances in conflict herewith be and
are hereby repealed.
SECTION 4. EFFECTIVE DATE.
This Ordinance shall take effect ten (10) days after its
adoption on 8th day of October , 1992.
ATTEST:
CITY CLERK “o41.19t.
1st reading 9/16/92
2nd reading 10/8/92
SWS:\Disk3\sidewalk.ord
9/30/92
FORM APPROVED
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